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IN THE FEDERAL HIGH COURT IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS

SUIT NO: FHC / L/CS/ 1102 /07

BETWEEN:

  1. MR. ADE OYEGBOLA } PLAINTIFF/ RESPONDENT
  2. MR. WALTER OLUWOLE } PLAINTIFF/RESPONDENT

(TRADING UNDER THE NAME) (STYLE OF “LANCOR”)

AND

  1. ONE LAPTOP PER CHILD ASSOCIATION INC } DEFENDANT/APPLICANT
  2. NICHOLAS NEGROPONTE } DEFENDANT /APPLICANT
  3. GROWING BUSINESS FOUNDATION } DEFENDANT/APPLICANT
  4. LEAPSOFT LIMITED } DEFENDANT/APPLICANT
  5. ALTEQ (ICT) LIMITED } DEFENDANT/APPLICANT

PRELIMINARY OBJECTION

BROUGHT UNDER ORDER 6 RULE 10(1), ORDER 6 RULE 12(1), 9 RULE 12(1) & (2), ORDER 52 RULES 1(1) (c) & RULE 3 FEDERAL HIGH COURT RULES 2000, SECTIONS 36 AND 6 (6) OF CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 AND UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT

TAKE NOTICE that this Honourable Court will be moved on the day of 2007, at the hour of 9 o’clock or soon thereafter as Counsel for the 1st, 2nd, 3rd and 4th Defendants/Applicants can be heard by way of preliminary objection and pursuant to Order 6 rule 10(1) & 12(1), 9 rule 12(1) & (2) ,Order 52 rule 1(1) (c) & rule 3 Federal High Court Rules 2000, Sections 36 and 6 (6) of 1999 Constitution of the Federal Republic of Nigeria and under the inherent jurisdiction of this Honourable Court praying for the following :

1. An Order striking out the suit filed on the 22nd November 2007 against the 1st, 2nd, 3rd and 4th Defendants/Applicants for lack of jurisdiction.

2. An Order dismissing the suit filed and dated 22nd November 2007 as it is wholly incompetent, vexatious and a gross abuse of the process of court.

3. An Order setting aside and /or discharging the Anton Piller Order and Interim Injunction granted on the 3rd December 2007 for having pre-judged the main issue in the proceedings leading to a Miscarriage of Justice.

4. An Order setting aside the order for leave to serve out of jurisdiction granted ex parte by the court on the 3rd December 2007.

5. An Order setting aside the Writ of Summons and all other processes for been fundamentally defective.

6. Costs of the action.


AN FOR SUCH FURTHER order(s) as this Honourable Court may deem fit to make in the circumstances.


AND FURTHER TAKE NOTICE THAT the grounds of the application are that:


1. The Plaintiffs/Respondents lack locus standi to institute this action.

2. The Statement of Claim discloses no reasonable cause of action against the Defendants/Applicants .

3. The Plaintiffs/Respondents misrepresented material facts to this honorable court.

4. The Plaintiffs/Respondents concealed material facts from this Honourable Court.

5. The Order of interim injunction would not have been granted but for the misrepresentation and /or concealment of material facts from the court.

6. Plaintiffs did not give security for costs.

7. The interim injunction has continued to expose the Defendants/Applicants to risks.

ALSO TAKE NOTICE that at the hearing of this application the Defendants/Applicants shall also rely on the records of this Honourable Court.

Dated this day of 2007

________________________
Musibau Ayodele Kusamotu (Lead Counsel)
The Greenfish Chambers
Kusamotu & Kusamotu
Suite 45, Dolphin Plaza,
Dolphin Estate- Ikoyi-Lagos State

FOR SERVICE ON:

PLAINTIFFS’/ RESPONDENTS’ COUNSEL
ADEDEJI & OWOTOMO
18TH FLOOR, THE BULL.
38/39 MARINA,

IN THE FEDERAL HIGH COURT IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS

SUIT NO: FHC/L/CS/1102/07

BETWEEN:

  1. MR. ADE OYEGBOLA } PLAINTIFF/RESPONDENT
  2. MR. WALTER OLUWOLE } PLAINTIFF/RESPONDENT

(TRADING UNDER THE NAME) (AND STYLE “LANCOR”)

AND

  1. ONE LAPTOP PER CHILD ASSOCIATION INC } DEFENDANT /APPLICANT
  2. NICHOLAS NEGROPONTE } DEFENDANT/APPLICANT
  3. GROWING BUSINESS FOUNDATION } DEFENDANT/APPLICANT
  4. LEAPSOFT LIMITED } DEFENDANT/APPLICANT
  5. ALTEQ (ICT) LIMITED } DEFENDANT/APPLICANT

AFFIDAVIT OF ADEGOKE ADEJOBI IN SUPPORT OF PRELIMINARY OBJECTION DATED 31st DAY OF DECEMBER 2007

I, Adegoke Adejobi, Male, Christian, Nigerian Citizen, Legal Practitioner of 531, Agege Motor road, Ladipo Estate, Shogunle, Lagos in the Law Firm of Kusamotu & Kusamotu hereby depose on oath as follows:

1. That I have the authority of the 1st, 2nd, 3rd, 4th Defendants/Applicants and my employers to depose to this affidavit.

2. That save as otherwise mentioned all the facts deposed to herein are within my personal knowledge.

3. On the 14th December 2007 at 3.00pm or thereabouts Dr. Ndidi Nnoli Edozien, CEO of the 3rd Defendant/Applicant informed our firm about a search carried out by bailiffs and the Respondents’ representatives on their premises at 60 Norman Williams Street, Ikoyi, Lagos State.

4. Dr. Ndidi Nnoli Edozien forwarded the Motion on Notice dated 22nd November 2007 to our law firm by email.

5. On the 17th December 2007, our law firm applied for a search and certified true copies of all the processes in the registry at the Federal High Court, Lagos.

6. On the 18th December 2007, our law firm obtained the certified true copies of the processes.

7. Upon conducting the search on the 18th December 2007, we discovered that an Ex Parte interim injunction had been granted to the Plaintiffs/Respondents on the 3rd December 2007 and that the matter also came up for hearing of the Motion on Notice on the 17th December 2007.

8. On the 19th and 20th December 2007 were public holidays in Nigeria and we were unable to take any steps.

9. On the 19th December 2007, our law firm communicated the court action to the 1st ,2nd Defendants/Applicants who in turn expressed shock as they had not been served with any processes of the court.

10. On the 24th December 2007, I obtained the certified true copy of the proceedings of the 3rd and 17th December 2007.

11. I observed that the Plaintiffs/Respondents reside outside the jurisdiction of this Honourable Court in the United States of America and did not provide any security for costs.

12. I also observed the court did not grant leave of court to issue the writ of summons out of jurisdiction.

13. I observed that the 1st and 2nd Defendants/Applicants operate and reside respectively outside the jurisdiction of this Honourable Court .

14. I observed that the Plaintiffs/Respondents had misrepresented and concealed material facts from the court in order to obtain the interim injunction Ex Parte against the Defendants/Applicants.

15. That the Plaintiffs/ Respondents concealed from the court that all the XO laptops imported by the 1st Defendant/Applicant were Beta Models 1, 2, 3, 4 for test purposes only and none has ever been sold to anyone in Nigeria.

16. That all the Beta XO laptops are to be re exported out of Nigeria for debugging after the conclusion of the test.

17. The Plaintiffs/Respondents concealed from the court that the Beta Models were donations from the 1st Defendant/Applicant to the Galadima School, LEA, Abuja. Now shown to me as Exhibit OLPC 1 is the Certificate of donation dated 19th February 2007.

18. Paragraph 3(n) of the affidavit in support of the Motion Ex parte for interim injunction dated 22nd November 2007 is false, the XO laptop is not being distributed through the 3rd and 5th Defendants or anyone whatsoever.

19. That further more, the purpose of the test was to discover how the Beta XO laptops would perform in the most rugged and rural environment in Nigeria and facilitate learning in the classrooms. That now shown to me as Exhibit OLPC 2 is a report prepared by Asabe Yabani, a Youth Corper with the 5th Defendant during Week 38 of the test.

20. The Galadima School, L.E.A TEST PROJECT is completed.

21. All the Beta XO laptops are in the possession of ONE LAPTOP PER CHILD NIGERIA LIMITED BY GUARANTEE until the school resumes.

22. Contrary to paragraph 3(f) of the affidavit in support of the Motion Ex Parte application for interim injunction dated 22nd November 2007, the Plaintiffs/Respondents do not have a Registered Patent on the Konyin Keyboard and at all material times there was not and never been in existence any Registered Design or Registered Patent.

23. Any purported registration of Registered Design No.8489 and extension is and has at all material times been invalid. The features highlighted in 3(e) of the Affidavit in support of the ex parte motion for Interim Injunction are totally false,misleading and vague.

24. Plaintiff s/Respondents did not disclose material facts pertaining to the status and objective of the 1st Defendant/Applicant as a NOT FOR PROFIT/NON STOCK ORGANISATION duly incorporated under the Laws of the Delaware. Now shown to me as Exhibit OLPC 4 is a certified true copy /notorised Certificate of Incorporation , Memorandum and Articles of Association and Financial Statement of 1st Defendant / Applicant for December 31,2006 and 2005 prepared by Lutz and Carr ,Certified Public Accountants,LLP shown to me as Exhibit OLPC 5.

25. The 1st Defendant’s/Applicant’s goal is a humanitarian and developmental mission currently focused on equipping large numbers of school children and their teachers in developing and developed countries with ultra low cost, individual, connected laptop computers to dramatically enhance their primary and secondary education.

26. The Plaintiffs/Respondents concealed from the Court that the Beta XO laptops were strictly not for sale in Nigeria and inscribed inside the Battery hold of the Beta XO Laptop as follows: “This device has not met all regulatory approvals therefore can not be offered for sale or lease (Test Sample).” The Defendants/Applicants shall rely on the Beta XO Laptop as Exhibit OLPC 6.

27. The 1st Defendant/Applicant duly obtained approval from the Standards Organisation of Nigeria to waive the SONCAP requirement .Now shown to me as Exhibit OLPC 7 is the waiver letter issued by Standards Organisation of Nigeria to 1st Defendant / Applicant.

28. All shipments of the Beta XO laptops have inscribed on the DHL slip “Description: XO machines, testing only, not for resale.” Now shown to me as EXHIBIT OLPC 8 is a copy slip for the shipment of 12th September 2007.

29. The 1st and 2nd Defendants/Applicants did not apply the Design of the Konyin Keyboard on the Beta XO laptops or any other XO laptop.

30. The physical design of Beta XO laptops was designed by Fuse Project and 1st Defendant/Applicant whilst the keycap iconography was designed by 1st Defendant/Applicant and Pentagram.

31. In designing the keyboard of the Beta XO laptops, all the techniques employed were those from the public domain. Contrary to the misrepresentation by the Plaintiffs/Respondents in paragraph 3(j) of the Affidavit in support of the Motion for Interim Injunction dated 22nd November 2007 ,the 1st Defendant /Applicant did not use the Plaintiffs’/Respondents’ design on the XO laptop. Now shown to me as EXHIBIT OLPC 9 is the physical keyboard layout of the Beta 1 XO laptop and EXHIBIT OLPC 10, the shape of the keyboard of Beta XO laptop.

32. A different keyboard layout will be applied to the XO laptop which will be distributed and sold in Nigeria. Now shown to me as Exhibit OLPC 11 is the said physical keyboard layout.

33. That the keyboard of the Beta XO Laptops incorporates the X windows System xkb symbol tables to incorporate 2 (two) shift keys :the standard Shift key found on typewriters for decades and the AltGr key (or any other key assigned to this role).The 1st Defendant/Applicant follows the methodology of the xkb system.

34. The Beta XO Laptop keyboard uses a different set of keys with 77 keys, 11 of which are unique. The glyphs commonly used in Igbo, Hausa and Yoruba were included as defined in the standard xkb symbol file.

35. These unique keys are Now shown to me in Exhibit OLPC 3 are:

a) journal key
b) neighbourhood view key
c) the friends view key
d) home view key
e) activity view key
f) digital /analog slide key(s)
g) bulletin board key
h) frame key
i) language key
j) grab key(s)
k) view source key

36. The keyboard on the Beta XO laptops are easy to use and moisture resistant, dust proof with flexible membranes.

37. The dimensions of the keyboard are 3 x 8 inches (7.6 x 20.3 cm) and the height of the keyboard is 5/16 inches (0.8cm). Now shown to me are Exhibit OLPC 12 is the Keyboard adjustment diagram, Exhibit OLPC 13 vertical top view of the keyboard, Exhibit OLPC 14 side view of the keys, Exhibit OLPC 15 horizon view of the keyboard and Exhibit OLPC 16 side view of the Space Bar.

38. That by the xkb system the only information one would need to create a keyboard layout is a description of which keys you want to assign to which position. There is no software or encoding involved.

39. The 1st Defendant/Applicant did not ‘reverse engineer’ the Konyin Keyboard or any keyboard for that matter as there is nothing to gain from the process by which any other system does its internal mapping apart from the XKB System.

40. Paragraph 3 of the Affidavit in support of the Motion for Interim Injunction is false, the key board on the Beta XO laptops uses a two shift key which allows for direct access typing which is the xkb system that enables the use of ‘dead keys’, Unicode ‘combining’ keys and the assignment of arbitrary Unicode characters.

41. The Plaintiffs/Respondents do not have any REGISTERED PATENT WHATSOEVER in Nigeria.

42. The Plaintiffs/Respondents gave false, misleading information to the Honorable Court.

43. That the 1st and 2nd Defendants/Applicants have been greatly injured by the Interim Injunction granted to the Plaintiffs/Respondents as it has put a stop to the Galadima Project and future importation of the XO laptop into Nigeria.

44. That the Interim Injunction has closed down the public spirited One laptop per Child project in Nigeria and done SUBSTANTIAL INJUSTICE to the PUBLIC, CITIZENS, CHILDREN AND TEACHERS.

45. That the One laptop Per Child Project is a global project involving several countries in Africa including Ghana, Rwanda,Nigeria and in Latin America,Paraguay,Brazil,Peru, Mexico and in Asia ; India and the injunction has brought the project into disrepute.

46. Contrary to 3(k) and (n) of the Plaintiffs/Respondents Affidavit in support of the Ex Parte Application for injunction , the Defendants/Applicants have never seen the Plaintiffs’/ Respondents’ software and the physical layout is publicly available at http://www.konyin.com/ .

47. Paragraph 3(f) of the Affidavit in support of the Motion Ex Parte for Interim Injunction is false. The 2nd Defendant / Applicant has never seen the Konyin Keyboard and did not order or execute an end user license agreement (EULA).

48. There is no risk of destruction of the Beta XO laptops as they are available in Nigeria.

49. There is no urgent situation for the Plaintiffs/Respondents to obtain an Interim Injunction.

50. The Plaintiffs/Respondents have been guilty of delay in applying for the order of injunction.

51. The Plaintiff/Respondents deliberately delayed the hearing of the Motion on Notice.

52. The injunction has caused irreparable damage to the Defendants/Applicants around the world and caused Nigeria to pull out of the One laptop per Child project.

53. That the Order of Injunction has not been served on the Defendants/Applicants.

54. That it is in the interest of justice that this application is granted.

55. That I make this affidavit in good faith and in accordance with the Oaths ACT.

___________________
DEPONENT


Sworn at the Federal High Court Registry, Lagos this day of December 2007

BEFORE ME


COMMISSIONER FOR OATHS

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